Heikkila v. Apex Land Corp., 2016 ABCA 126

• Judge: Berger, Watson and Wakeling, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: April 12, 2016
• Citations: 2016 ABCA 126;(2016), 616 A.R. 390

Heikkila v. Apex Land Corp. (2016), 616 A.R. 390; 672 W.A.C. 390 (CA)

MLB headnote and full text

Temp. Cite: [2016] A.R. TBEd. MY.002

Kevin Donald Heikkila (appellant)

(plaintiff/applicant) v. Apex Land Corporation (respondent)

(defendant/respondent)

(1401-0264-AC; 2016 ABCA 126)

Indexed As: Heikkila v. Apex Land Corp.

Alberta Court of Appeal

Berger, Watson and Wakeling, JJ.A.

April 28, 2016.

Summary:

The plaintiff (Heikkila) was seriously injured on a job site. He sued the defendant developer (Apex), alleging that it was negligent in the development and supervision of the project and/or was vicariously liable for the negligence of its manager and alleged agent (Summa). Further, Heikkila claimed breach of duty of care under the (former) Occupier's Liability Act, both in its own capacity as occupier and vicariously for Summa.

The Alberta Court of Queen's Bench, in a decision reported at (2014), 597 A.R. 114,  found that Apex, as an owner/developer was not negligent in the circumstances of this case. Further, Summa was an independent contractor and was not in an agency relationship with Apex. Therefore, there could be no imposition of vicarious liability on Apex. In addition, Apex discharged its statutory duty as an occupier by exercising reasonable care in the selection and supervision of its independent contractors. Heikkila appealed.

The Alberta Court of Appeal dismissed the appeal.

Editor's Note: Heikkila's claim against another individual (Apfeld) and company (JTL Project Management) was held to be barred by the Workers' Compensation Act and neither remained a party to this action (see (2007), 404 A.R. 33; 394 W.A.C. 33 (C.A.)).

Agency - Topic 301

Creation of relations - General - What constitutes - [See first Torts - Topic 3508 ].

Agency - Topic 323

Creation of relation - Parties - Agent - Who constitutes - [See first Torts - Topic 3508 ].

Practice - Topic 9012

Appeals - Restrictions on arguments on appeal - Issues or points not previously raised (incl. new theory of the case) - [See second Torts - Topic 3508 ].

Torts - Topic 77

Negligence - Duty of care - Relationship required to raise duty of care - The plaintiff (Heikkila) was seriously injured on a job site - He sued the defendant developer (Apex), alleging that it was negligent in the development and supervision of the project and/or was vicariously liable for the negligence of its manager and alleged agent (Summa) - Further, Heikkila claimed breach of duty of care under the (former) Occupier's Liability Act, both in its own capacity as occupier and vicariously for Summa - The trial judge held that Apex, as an owner/developer was not negligent in the circumstances of this case - Further, Summa was an independent contractor and was not in an agency relationship with Apex - Therefore, there could be no imposition of vicarious liability on Apex - In addition, Apex had discharged its statutory duty as an occupier by exercising reasonable care in the selection and supervision of its independent contractors - Heikkila appealed, submitting, inter alia, that there was a "duty of care as a developer" - The Alberta Court of Appeal stated that "... this would appear to assert direct liability on the part of Apex to the appellant. The trial judge said the appellant cited no authority to establish such a direct duty from Apex to the appellant outside the OLA [Occupier's Liability Act]. Most factual situations of private law liability are governed by ordinary principles of negligence or of vicarious liability, or by contractual obligation, or by the OLA (or perhaps even by some form of fiduciary duty). But the appellant's position seems to be that there is a gap that needs to be filled by a new jural relationship founding liability specifically for a developer. Absent a full argument addressing the criteria in Canada v Imperial Tobacco Canada Ltd, 2011 SCC 42 at paras 38 to 45, [2011] 3 SCR 45, we have been given no basis to recognize such a new line of liability unlinked to any existing principle or extending from it. Indeed, accepting this would seem to undermine the policy decision of the Legislature in the OLA. [T]he OLA does not make foreseeability alone the test for liability. Developing a novel form of proximity, or standard of care, beyond the OLA was not accomplished below." - See paragraphs 9 and 10.

Torts - Topic 2554

Vicarious liability - For independent contractors - Building contractors - [See Torts - Topic 77 and both Torts - Topic 3508 ].

Torts - Topic 3504

Occupiers' liability or negligence for dangerous premises - General principles - Duty of occupier - Foreseeability - [See Torts - Topic 77 ].

Torts - Topic 3508

Occupiers' liability or negligence for dangerous premises - General principles - Liability of occupier for acts of third party - The plaintiff (Heikkila) was seriously injured on a job site when he slipped on the icy roof and fell through a piece of plywood covering a hole that had been cut through the roof for a skylight - He sued the developer (Apex), alleging that it was negligent in the development and supervision of the project and/or vicariously liable for the negligence of its manager and alleged agent (Summa) - The trial judge held that Apex could only be held vicariously liable for Summa's alleged negligence if they were found to have an employee/employer or an agency relationship as opposed to an independent contractor relationship - The court found no express agreement to characterize the relationship as one of agency - Although their Agreement was slightly ambiguous, the overall intention of the parties and Agreement was that Summa was hired as an independent contractor - Although Summa hired the subtrades, it was Apex who ultimately signed the contracts - On appeal, Heikkila argued, inter alia, that even if Summa was an agent for limited purposes, the vicarious liability of Apex as principal should arise as long as Summa was acting within the general scope of instruction or authority from Apex - The Alberta Court of Appeal held that the trial judge committed no palpable and overriding error in finding there was no agency - "Here it was reasonable to find that Apex employed Summa for a series of purposes, but that Apex essentially left the steps to be taken to Summa in its capacity as an experienced and knowledgeable performer of such steps." - There was "... also force to the suggestion by Apex that by virtue of s 11 of the OLA [Occupiers' Liability Act], the Legislature has suggested that it is not justified to impose liability on a developer employing an independent contractor if the circumstances set out in s 11 are met." - See paragraphs 12 to 15 and 20 to 27.

Torts - Topic 3508

Occupiers' liability or negligence for dangerous premises - General principles - Liability of occupier for acts of third party - In 1994, the plaintiff (Heikkila) was seriously injured on a job site - He sued the defendant developer (Apex), alleging that it was negligent in the development and supervision of the project and/or was vicariously liable for the negligence of its manager and alleged agent (Summa) - Further, Heikkila claimed breach of duty of care under the (former) Occupier's Liability Act, both in its own capacity as occupier and vicariously for Summa - The trial judge held that Apex, as an owner/developer was not negligent in the circumstances of this case - Further, Summa was an independent contractor and was not in an agency relationship with Apex - Therefore, there could be no imposition of vicarious liability on Apex - In addition, Apex had discharged its statutory duty as an occupier by exercising reasonable care in the selection and supervision of its independent contractors - Heikkila appealed, submitting, inter alia, that Apex was vicariously liable for the negligence of Summa even if Summa was an independent contractor because the work was "inherently dangerous"; therefore the liability was non-delegable and Apex did not have the right to just leave that up to Summa - The Alberta Court of Appeal agreed with Apex that it should not permit this argument to be raised after so many years and in light of the fact that this line of analysis was not clearly set out in the pleadings - Alternatively, the court would have rejected the argument - The court stated that "To accept the appellant's argument would include within the concept of inherent danger comprehensive of virtually all activities done on a worksite that could be done negligently with dangerous implications. In other words, this reasoning would make the defendant developer/occupier liable almost to the level of an insurer of all significant physical work being performed by general or sub-contractors on a construction site." - See paragraphs 16 to 19 and 28 to 36.

Torts - Topic 3758

Occupiers' liability or negligence for dangerous premises - Licensees - Standard of care of occupier - Construction site - [See Torts - Topic 77 and both Torts - Topic 3508 ].

Trade Regulation - Topic 7741

Industrial safety - Duty of care - General - [See Torts - Topic 77 and second Torts - Topic 3508 ].

Trade Regulation - Topic 7744

Industrial safety - Duty of care - When duty arises - [See Torts - Topic 77 and second Torts - Topic 3508 ].

Workers' Compensation - Topic 120

General principles - Effect of statute on other causes of action - Exceptions to statutory bar re civil actions - The plaintiff (Heikkila) was seriously injured on a job site - He sued the defendant developer (Apex), alleging that it was negligent in the development and supervision of the project and/or was vicariously liable for the negligence of its manager and alleged agent (Summa) - Further, Heikkila claimed breach of duty of care under the (former) Occupier's Liability Act, both in its own capacity as occupier and vicariously for Summa - The trial judge held that Apex, as an owner/developer was not negligent in the circumstances of this case - Further, Summa was an independent contractor and was not in an agency relationship with Apex - Therefore, there could be no imposition of vicarious liability on Apex - In addition, Apex had discharged its statutory duty as an occupier by exercising reasonable care in the selection and supervision of its independent contractors - Heikkila appealed - The Alberta Court of Appeal stated, inter alia, that "Although Apex suggests in its Factum ... that the suit by the appellant was ill-founded as circumventing the policy in the WCA [Workers' Compensation Act], we observe that the WCB [Workers' Compensation Board] has jurisdiction under what are presently ss 22 and 22.1 of the WCA to approve actions either in the name of a claimant (s 21) or as divested to the claimant (s 22.1). In light of that situation, and in light of the fact that we were not told of any motion to stop the action as illegitimate in any manner, we do not accept this suggestion by Apex ..." - See paragraph 5.

Counsel:

R. Calvert, Q.C., M. Yuen and S.W. Mulrain, for the appellant;

D. Dear, Q.C., and J. Biernaskie, for the respondent.

This appeal was heard on April 12, 2016, by Berger, Watson and Wakeling, JJ.A., of the Alberta Court of Appeal. The Court of Appeal delivered the following memorandum of judgment on April 28, 2016.